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2020 Supreme(Bom) 1334
IN THE HIGH COURT OF BOMBAY AT GOA
M.S. JAWALKAR, J.
The Oriental Insurance Co. Ltd., Through its Divisional Manager Avinash Anaokar, Gouveia Chambers - Appellant
Versus
Mandar Vaman Manerkar & Others - Respondent
Civil Revision Application No. 6 of 2015
Decided On : 29-09-2020
For the Applicant :Emerico Estevam Afonso, R.G. Ramani, Senior Advocate with P. Kakodkar, Advocates.
The main legal point established in the judgment is the requirement for the insurance company to obtain permission of the Tribunal under Section 170 of the Motor Vehicles Act, 1988, to defend the petition and the principles for computing compensation in motor vehicle accident injury cases.
Headnote:
Motor Accident Claims Tribunal - Motor Vehicles Act, 1988, Section 166, Section 170, Section 173 - The court discussed the interpretation of Section 170 and 149 of the Motor Vehicles Act, 1988, and the requirement for the insurance company to obtain permission of the Tribunal under Section 170 to defend the petition. The court also considered the assessment of compensation for personal injuries, including the calculation of future income and loss of earning capacity. Key legal provisions discussed include the principles for computing compensation in motor vehicle accident injury cases and the assessment of pecuniary and non-pecuniary damages.
Fact of the Case:
The revision application was filed by the Oriental Insurance Company challenging the judgment and award of the Motor Accident Claims Tribunal, which awarded compensation for personal injuries in a motor accident. The claimant sought Rs. 8,00,000 for injuries sustained in a motorcycle accident involving a van insured by the applicant-Company. The Tribunal awarded Rs. 7,70,000 compensation jointly and severally to the petitioner and the driver and owner of the van.
Finding of the Court:
The court found that the Tribunal erred in assessing the compensation by compounding the claimant's annual income and in determining the percentage of permanent disability. It also found discrepancies in the claimant's employment status and salary. The court modified the judgment and awarded Rs. 4,67,000 compensation to the claimant, including amounts for treatment expenses, loss of earnings, pain and suffering, and loss of amenities.
Issues: The issues included the interpretation of the Motor Vehicles Act, 1988, regarding the insurance company's requirement to obtain permission to defend the petition, the assessment of compensation for personal injuries, and the determination of the claimant's employment status and salary.
Ratio Decidendi: The court's decision was based on the assessment of evidence, including the claimant's medical certificate and employment details, and the application of legal principles for computing compensation in motor vehicle accident injury cases.
Final Decision: The court partly allowed the application, modified the Tribunal's order, and awarded Rs. 4,67,000 compensation to the claimant, holding the respondent nos.1, 2, and 3 jointly and severally liable to pay the amount with interest.
JUDGMENT :
1. Heard Mr. E. Afonso, the learned Counsel for the applicant and Mr. R. G. Ramani, learned Senior Counsel with Mr. P. Kakokdar, learned Advocate for the respondent no.1 (claimant).
2. The present revision application is filed by the Oriental Insurance Company being aggrieved by the judgment and award dated 03.06.2014 by the Motor Accident Claims Tribunal, North Goa, Panaji, Goa, in Claim Petition No. 69 of 2010.
3. The learned Advocate for revision applicant Mr. E. Afonso, submitted that before the Tribunal, the claim of the petitioner was under Section 166 of the Motor Vehicles Act, 1988 and he claimed an amount of Rs. 8,00,000/- for personal injuries in motor accident on 06.11.2008 involving motorcycle bearing no. GA 03/F 5964 belonging to the respondent no.1 and Van bearing no. GA 01/Z 0404, driven by respondent no.2, owned by respondent no.3 and insured with the applicant-Company. The driver and the owner of the van did not contest the claim and Tribunal proceeded exparte against them. It is also matter of record that the applicant-insurance company, did not apply to defend the petition under Section 170 of Motor Vehicles Act, (Act, for brevity). The learned Tribunal awarded amount of compensation of Rs.7,70,000/- with 9% interest to be paid jointly and severally to the petitioner and the respondent nos.2 and 3, (driver and owner).
4. It is submitted by the learned Counsel for appellant that in the case of United India Insurance Company Ltd., vs. Shila Datta & Ors., reported in (2011) 10 SCC 509, which is a three Judges Bench, constituted for interpretation of Section 170 and 149 of the Act however having taken a different view on interpretation, the matter was referred to a larger bench of five Judges. The real issue was that when owner and driver remained absent in collusion with the claimant, whether the insurance company required to obtain permission of the Tribunal under Section 170 of the Act to defend the petition on all grounds available to the driver and owner of the vehicle. Failing which, the appeal under Section 173 of the Act by the insurer is not maintainable. As there is no appeal maintainable by the insurer, a revision petition is maintainable.
5. The learned Counsel also relied on the citation in the case of Sadhana Lodh vs. National Insurance Company Ltd., reported in (2003) 3 SCC 524. So also he relied on judgment of Hon'ble Bombay High Court at Panaji, in First Appeal no. 104 of 2001 in the case of New India Assurance Ltd., vs. Veerapanaidu & Ors., wherein it is held that the revision is not barred by the said legislation.
6. Learned Advocate for respondent no.1-claimant fairly accepts this position of law that revision is maintainable. However, it is submitted that the scope of revision is limited as against the scope of appeal. Thus, I will proceed with the admitted position of law that revision is maintainable.
7. I have called for the records and proceedings of the Claim Petition no.69 of 2010 for perusal. Learned Counsel for the applicant submitted that the learned Accident Claims Tribunal while passing the impugned judgment and award, exercised jurisdiction not vested in it by law or acted in the exercise of jurisdiction illegally with material irregularity. It is totally erred in holding Rs. 1,14,400/- as annual income of respondent no.1 (claimant) for assessing the compensation by compounding 10% every year. It failed to appreciate that there was no question of increasing the salary by compounding the same by 10% every year for loss of future prospects. It also erred in holding 45% permanent disability while assessing the compensation and awarding huge compensation. It needs to be considered by the learned Tribunal that the 45% disability is of one limb and it was not of whole body.
8. Learned Counsel relied on the citation in the case of Raj Kumar vs. Ajay Kumar & anr. Reported in (2011
